Covid-19 and Legal Liability of Employers
Jun 23, 2020
Compensation for Occupational Injuries and Diseases Act
Employers in South Africa are indemnified from claims by their employees for injuries on duty or for contracting occupational diseases. The Compensation Fund serves as a type of statutory insurance for workplaces and the COID Act provides criteria for eligible employees and the circumstances that would qualify.
On 20 March 2020 the Compensation Commissioner issued a Notice that recognises occupationally-acquired Covid-19 as a disease under the Compensation for Occupational Diseases Act when arising out of and in the course of his/her employment. It is described as occupationally-acquired Covid-19 resulting from single or multiple exposures to confirmed cases of Covid-19 in the workplace (or after official trips to high-risk areas) in a previously Covid-19 free employee.
The Notice stipulates certain criteria for a valid diagnosis of Occupationally Acquired Covid-19 to be made:
- Occupational exposure to a known source of COVID-19;
- A reliable diagnosis of COVID-19 as per the WHO guidelines;
- An approved official trip and travel history to countries and/or areas of high risk for COVID-19 on work assignment;
- A presumed high-risk work environment where transmission of COVID-19 is inherently prevalent; and
- A chronological sequence between work exposure and the development of symptoms.
The Notice also specifies the risk level of various occupations:
- Very High Risk - i.e. - healthcare workers, laboratory workers and morgue workers performing autopsies;
- High risk - i.e. - Healthcare delivery and support staff, medical transport workers and morgue workers involved in preparing the bodies;
- Medium risk -i.e. - employees required in their workplaces to sit closer than 2m apart, workers in contact with international travellers, workers in schools and consulting rooms;
- Low risk - i.e. – workers engaged in jobs that do not require contact with people and have more than 2m of space.
It should therefore be noted that not all employees who were coincidentally on the employer's premises where another positively diagnosed employee or visitor had been present, would necessarily qualify for COIDA if they subsequently contract the disease. It is obviously difficult to determine where and when a person has become infected, and the risk level of the working environment and the chronological sequence between potential exposure and symptom development, will play a big role during the assessment of the claim.
The employer should report all alleged, presumed and confirmed cases of COVID-19 related occupational disease to the Compensation Commissioner in the prescribed format using the relevant documentation as required in terms of COIDA. The Commissioner shall consider and adjudicate upon the liability of all claims, and the medical officers in the office of the Commissioner are responsible for medical assessments of the claim and the confirmation of the acceptance or rejection of the claim.
Compensation benefits available to an employee upon acceptance of a claim include:
- Leave for temporary disability (not exceeding 30 days from diagnosis) instead of paid sick leave;
- Assessment by an occupational medicine specialist in cases of complex disease that may result in permanent disability;
- Cover of medical expenses for the treatment and testing (for 30 days or as extended by the Director-General), and
- Compensation to dependents in the event of death arising from occupationally acquired COVID-19, including reasonable burial expenses and the spouse/dependents' pensions, where applicable.
In circumstances where there is a suspected, unconfirmed case of occupationally acquired Covid 19 and an employee is placed under self-quarantine on recommendation by a registered medical practitioner, then the employer is liable for remuneration for the days of absence. Normal paid sick leave would apply (or alternatively UIF illness benefits).
Reporting and claims processing
Reporting of cases to the Compensation Commissioner must be done in line with the requirements set out in the notice, using the prescribed documentation. Claims may be submitted online or manually.
On reporting occupationally acquired COVID-19, the Compensation Commission must be furnished with:
- The employer’s report of an occupational disease
- Notice of an occupational disease and claim for compensation
- Exposure and medical questionnaire
- First medical report in respect of an occupational disease, indicating that the claim is for a code ICD-10 (COVID-19)
- Exposure history and/or another appropriate employment history containing information that may be helpful to the Compensation Commissioner
- A medical report on the employee’s symptoms, detailing the history and establishing the diagnosis of COVID-19, laboratory results and chest X-Rays, where appropriate, or any other information relevant to the claim
- Progress medical reports in respect of each consultation
- Final medical report when the employee’s condition has reached maximum medical improvement
- An affidavit by the employee if the employer cannot be traced or will not timeously supply the report of the occupational disease, where applicable.
Employers or business owners may however incur legal liability related to Covid-19 in certain circumstances.
In terms of the COGTA Regulations, the Occupational Health and Safety Act and the specific Health and Safety Directives, there are penalties or even criminal liability in some instances when employers do not comply with the prescribed statutory obligations. These obligations cannot be contracted out - regardless of any type of indemnity an employer may require its employees or third parties to sign when they enter its premises.
An employer could potentially be held liable for damages if harm is caused to someone due to the negligent (or intentional) and unlawful conduct by the employer. If someone is for example exposed to Covid-19 on the employer's premises in circumstances where the employer had failed to take reasonable safety precautions or had known that an employee was infected but allowed him/her to continue working, that employer would be hard-pressed to escape liability.
© Judith Griessel